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FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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U.S. BANK NATIONAL ASSOCIATION, AS Index No. 600285/2020
TRUSTEE, SUCCESSOR IN INTEREST TO
WACHOVIA BANK, N.A., AS TRUSTEE FOR
MERRILL LYNCH MORTGAGE INVESTORS,
INC., MERRILL LYNCH MORTGAGE INVESTORS
TRUST, SERIES 2005-3,
Plaintiff,
-against-
63 HOLIDAY DRIVE REALTY CORP., NATIONAL
CITY BANK, THE. BOARD OF MANAGERS OF
THE ALHAMBRA CONDOMINIUM, THE
ALHAMBRA CONDOMINIUM, SUNJAN SINGH,
and JOHN DOE,
Defendants.
-----------------------------------------------------------_______Ç
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S
MOTION TO AMEND THE COMPLAINT AND FOR A DEFAULT
JUDGMENT AND IN SUPPORT OF CROSS-MOTION OF DEFENDANT
63 HOLIDAY DRIVE REALTY CORP. FOR COSTS AND SANCTIONS
MILLER, ROSADO & ALGIOS, LLP
Christopher Rosado, Esq.
Attorneys for Defendant
63 Holiday Drive Realty Corp.
320 Old Country Road, Suite 103
Garden City, New York 11530
Of Counsel: Neil A. Miller, Esq.
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Table of Contents
PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENTS....................... 1
POINT I
PLAINTIFF'S MOTION TO AMEND THE COMPLAINT SHOULD
BE DENIED ........................................................................................................ 7
A. 63 Holiday Would Be Prejudiced And Surprised By The Proposed
Amendment, And Plaintiff Unduly Delayed Moving To Amend ........... 7
B. The Proposed Amendment Is Palpably Insufficient And Patently
Devoid Of Merit ...................................................................................... 9
POlNT II
63 HOLIDAY'S CROSS-MOTION FOR COSTS AND SANCTIONS
SHOULD BE GRANTED ................................................................................... 14
CONCLUSION ............................................................................................................... 16
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Table of Authorities
Cases
American Builders & Contractors Supply Co., Inc. v. US Allegro, Inc.,
177 A.D.3d 836, 112 N.Y.S.3d 765
(2nd
Dept. 2019) ........................................................................................................ 7, 9
Dawley v. McCurnber,
45 A.D.3d 1399, 845 N.Y.S.2d 888
(4th
Dnt. 2007) ........................................................................................................ 9
DeLuca v. Pecoraro,
109 A.D.3d 636, 970 N.Y.S.2d 822
(2"d
Dept. 2013) ........................................................................................................ 4, 9
Golden First Bank v. Tal,
136 A.D.3d 974, 25 N.Y.S.3d 638
(2nd
Dept. 2016) ........................................................................................................ 10
Hussain v. Chain,
217 A.D.3d 929, 192 N.Y.S.3d 170
(2nd
Dept. 2023) ........................................................................................................ 12
Indymac Bank, F.S.B. v. Vincoli,
105 A.D.3d 704, 962 N.Y.S.2d 624
(2nd
Dept. 2013) ........................................................................................................ 5, 10
JP Morgan Chase Bank, N.A. v. Mbanefo,
123 A.D.3d 669, N.Y.S.2d 415,
(2nd
Dept. 2014) ........................................................................................................ 5, 11
Krisher v. Hernandez,
2023 N.Y. Misc. LEXIS 3270
2023 Slip Op 3219[U]
(Sup. Ct., N.Y. Co. 2023) ........................................................................................ 12
Li v. Shah,
207 A.D.3d 444, 171 N.Y.S.3d 547,
(2nd
Dept. 2022) ........................................................................................................ 7
.
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Matter of Amona v. County of Orange,
123 A.D.3d 1117, 1 N.Y.S.3d 166
(2nd
Dept. 2014) ........................................................................................................ 10
Med-Mac Realty Co., Inc. v. Modell,
2018 N.Y. Misc. LEXIS 801
2018 NY Slip Op 30409[U]
(Sup. Ct., N.Y. Co. 2018) ......................................................................................... 4,8
Pensabene v. City of New York,
172 A.D.3d 1396, 98 N.Y.S.3d 900
(2nd
Dept. 2019) ........................................................................................................ 5, 12
Rice-Tamsen v. Tamsen,
214 A.D.3d 685, 182 N.Y.S.3d906
(2nd
Dept. 2023) ........................................................................................................ 4, 7, 9
Statutes and Court Rules
CPLR §1003 ............................................................................................................. 5, 12
CPLR §3025(a) ........................................................................................................... 12
CPLR § 3025 ( b ) ........................................................................................................ 5, 7
CPLR §3215[c] ........................................................................................................ 2, 4, 6
7, 8
CPLR § 3025[b] ....................................................................................................... 5
CPLR § 5015 ........................................................................................................... 10
P § ..........................................................................................................
ORPA
151L 5, 10
RPAPL§1501(1)..................................................................................................... 10
RPAPL §1515 ......................................................................................................... 10
RPAPL §1526 ........................................................................................................ 10
RPAPL Article 15 .................................................................................................... 10, 11
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22 NYCRR §130-1.1[c][1] ...................................................................................... 5
22 NYCRR §130-1.1[c][2] ...................................................................................... 6
NY RR 3 OC
122 -1 1 c 14
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------------x
U.S. BANK NATIONAL ASSOCIATION, AS Index No. 600285/2020
TRUSTEE, SUCCESSOR IN INTEREST TO
WACHOVIA BANK, N.A., AS TRUSTEE FOR
MERRILL LYNCH MORTGAGE INVESTORS,
INC., MERRILL LYNCH MORTGAGE INVESTORS
TRUST, SERIES 2005-3,
Plaintiff,
-against-
63 HOLIDAY DRIVE REALTY CORP., NATIONAL
CITY BANK, THE BOARD OF MANAGERS OF
THE ALHAMBRA CONDOMINIUM, THE
ALHAMBRA CONDOMINIUM, SUNJAN SINGH,
and JOHN DOE,
Defendants.
______________-_______________________________--------------------Ç
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S
MOTION TO AMEND THE COMPLAINT AND FOR A DEFAULT
JUDGMENT AND IN SUPPORT OF CROSS-MOTION OF DEFENDANT
63 HOLIDAY DRIVE REALTY CORP. FOR COSTS AND SANCTIONS
Preliminary Statement and Summary of Arguments
Plain and simple, plaintiff's motion, ostensibly to amend its Complaint 3-1/2 years after it
commenced this action, is utterly unnecessary and for that reason, warrants the imposition of
sanctions against it. This is a mortgage foreclosure action in which plaintiff seeks to foreclose its
mortgage with respect to a certain condominium unit know as 88 Alhambra Drive, Building 6,
Unit 88, Oceanside, New York 11572 (the "Property"). Plaintiff commenced this action in early
January 2020 including among the defendants named herein the two (2) owners of record of the
- 63 Drive Corp. ("63 and Sunjan Singh ("Singh"). In the
Property Holiday Realty Holiday")
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more than 3-1/2 years between the commencement of this action and plaintiff's current motion to
amend, there has been substantial motion practice involving b_o_1h 63 Holiday's attempt to dismiss
this action pursuant to CPLR §3215[c], the denial of which is now before the Second Department
in a perfected appeal, and plaintiff's failure to timely serve Mr. Singh, due entirely its
unwillingness to expend the time and monies required to serve him in India pursuant to the
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters.
Plaintiff's new misguided strategy is apparently to try to avoid these problems by now
claiming, contrary to its own Complaint, that neither defendant Board of Managers of the
Alhambra Condominium (the "Board of Managers"), nor 63 Holiday or Mr. Singh ever had valid
title to the Property. Specifically, plaintiff now seeks to attack a certain Judgment of Foreclosure
and Sale dated August 29, 2019 (the "Condominium Lien Foreclosure Judgment") issued in a
separate condominium lien foreclosure action commenced by the Board of Managers in this
Court (Index No. 611001/2017; the "Condominium Lien Foreclosure Action"). In that
connection, plaintiff wrongly maintains that the Condominium Lien Foreclosure Judgment is a
because Carol E. Platzker the prior owner of the who was the first-
nullity ('Platzker"), Property
named defendant in the original summon and complaint in that action, had died prior thereto,
conveniently ignoring the fact that both the original summons and complaint were amended as of
right by the plaintiff there Board of Managers a mere ten (10) days after their filing to
acknowledge Ms. Platzker's death and to name Mindy Zoghlin ("Zoghlin"), the appointed
executrix of Ms. Platzker's estate, as a defendant as a "possible heir". Plaintiff likewise
conveniently chooses to ignore the fact that Ms. Zoghlin, through her attorney, admitted service
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of the amended summons and amended complaint in the Condominium Lien Foreclosure Action,
and was subsequently served with an of the papers thereafter, including but not limited to notice
of entry of the Condominium Lien Foreclosure Judgment, without asserting any answer or
objection thereto.
Plaintiff, a stranger to the Condominium Lien Foreclosure Action, goes through all of this
now, some 3-1/2 years after commencement of this action, because it seeks to vacate a certain
deed dated October 29, 2019 (the "October 2019 Deed"; see accompanying affirmation of
Christopher Rosado, Esq. dated November 2, 2023 ["Rosado Affirm"], Exhibit C thereto) issued
by the referee appointed in the Condominium Lien Foreclosure Action by which the Board of
Managers took title to the Property as well as a subsequent deed dated December 9, 2019 (the
"December 2019 Deed", Rosado Affirm, Exhibit B thereto) by which the Board of Managers sold
the Property to 63 Holiday and Mr. Singh. Of course, plaintiff was fully aware when it filed its
original Complaint that the Board of Managers', 63 Holiday's and Mr. Singh's title devolved
from a judicial sale conducted pursuant to the Condominium Lien Foreclosure Judgment issued
in connection with the Condominium Lien Foreclosure Action, as it acknowledged such so much
in the Complaint.
The lack of procedural or substantive merit to plaintiff's motion aside, most egregiously
there was no need at all of this motion to go forward. Specifically, 63 Holiday's counsel offered
to enter into a stipulation with plaintiff's counsel that would address any conceivable concern (as
unfounded thought it may be) that necessary parties (Ms. Zoghlin and other heirs of Ms.
Platzker's estate) were missing; to wit, a stipulation permitting plaintiff to add them as
defendants to the existing cause of action for foreclosure so as to bind them to any judgment of
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foreclosure and sale that might issue herein (Rosado Affirm., Exhibit D thereto). However,
plaintiff did not even have the courtesy to respond to this overture that the dispute could be
readily resolved by stipulation suggested above. In so doing, plaintiff revealed its true
motivation - i.e. it hoped to try and avoid dismissal of this action 63 Holiday as a
by eliminating
necessary party if it could somehow contrary to law and fact vacate the December 2019 Deed of
the Property to it.
In Point I, we show that plaintiff's utterly inconsistent motion both to interposed an
Amended Complaint while simultaneously seeking a default judgment with respect to the
original Complaint should be denied. Among other things, plaintiff has no_t complied with the
facts"
basic requirement that it explain when it first learned of the "new which are the supposed
basis for its motion to amend and provide a reasonable excuse for its delay in asserting them
[2nd
(Rice-Tamsen v. Tamsen, 214 A.D.3d 685, 686, 182 N.Y.S.3d 906, 907 Dept. 2023]).
Moreover, the time and money already expended by 63 Holiday litigating issues that plaintiff is
now belatedly attempting to avoid, including considerable motion practice and perfecting an
appeal on whether it is entitled to dismissal under CPLR is cognizable prejudice (Med-
§3215[c],
Mac Realty Co., Inc. v. Modell, 2018 N.Y. Misc. LEXIS 801, at p. 15, 2018 NY Slip Op
30409[U], at p. 13 [Sup. Ct., N.Y. Co. 2018]). Moreover, the new cause of action asserted by
plaintiff attacking 63 Holiday's title to the Property is unanticipated, inconsistent with the
original Complaint and would greatly expand the issues in this nearly 4 year old case, all of
"surprise"
which constitutes the type of warranting denial of plaintiff's motion deny a motion to
[2nd
amend (DeLuca v. Pecoraro, 109 A.D.3d 636, 637-38, 970 N.Y.S.2d 822, 823-24
2013]). Lastly, the proposed amendment is also palpably insufficient and patently devoid of
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merit in that: (1) any attempt to vacate the Condominium Lien Foreclosure Judgment must be
made in the context of that action (Indymac Bank, F.S.B. v. Vincoli, 105 A.D.3d 704, 706, 962
[2"d
N.Y.S.2d 624, 626 Dept. 2013]); (2) as there is no party asserting or even potentially
asserting that plaintiff's mortgage interest is invalid, the proposed second cause of action fails to
state a claim ("RPAPL') §1501, and plaintiff does not seek to recover ownership or possession of
real property (JP Morgan Chase Bank, N.A. v. Mbanefo, 123 A.D.3d 669, 998 N.Y.S.2d 415,
[2nd
416 Dept. 2014); and (3) plaintiff's contention that the Condominium Lien Foreclosure
Judgment is a nullity because of Ms. Platzker's death before the commencement of the
Condominium Lien Foreclosure Action is demonstrably wrong on numerous grounds, such as the
Managers'
Board of entitlement to add Ms. Zoghlin as a party and to amend the complaint as of
right (CPLR §§1003, 3025[b]), the ability to amend to add Ms. Zoghlin regardless since the
action still existed as against the other named defendant in that action, National City Bank
[2nd
(Pensabene v. City of New York, 172 A.D.3d 1396, 1396-97, 98 N.Y.S.3d 900, 901
2019]) and because any supposed defect in the Condominium Lien Foreclosure Action or the
Condominium Lien Foreclosure Judgment was waived by Ms. Zoghlin, when her counsel therein
admitted service of the amended summons and amended complaint and then failed to defend the
action or raise any objection when a slew of litigation papers were subsequently served upon
him, including notice of entry of the Condominium Lien Foreclosure Judgment.
In Point II, we show that 63 Holiday's cross-motion for sanctions should be granted.
Plaintiff's motion is frivolous for two (2) independent reasons. First, for the reasons stated in
Point I, it is "completely without merit in law and cannot be supported by a reasonable argument
law"
for an extension, modification or reversal of existing (22 NYCRR §130-1.1[c][1]). Second,
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the motion was "undertaken primarily to delay or prolong the resolution of the litigation, or to
another"
harass or maliciously injure (22 NYCRR §130-1.1[c][2]). Plaintiff not only ignored a
warning from 63 Holiday's counsel that there was no merit to its motion (Rosado Affirm.,
Exhibit L thereto), but did n_ot even have the courtesy to respond to a later offer from 63
Holiday's counsel to stipulate to the conceivable relief plaintiff could even need -
only remotely
adding Ms. Zoghlin, the executrix of the Ms. Platzker estate and other beneficiaries of the estate
as parties to the existing cause of action for foreclosure (Rosado Affirm., Exhibit D thereto).
This demonstrates that plaintiff's true motivation was to avoid the possibility that its case against
63 Holiday might be dismissed by the Second Department on CPLR §3215[c] grounds. Having
unnecessarily put 63 Holiday to the expense of defending a meritless and unnecessary motion,
plaintiff should be forced to pay for the privilege.
We develop these argmnents below. The relevant facts are set forth in the accompanying
affirmation of Christopher Rosado, Esq., and will be repeated only insofar as necessary to discuss
herein.¹
the legal issues
IPlaintiff also sought, not in the alternative, a default judgment against all non-answering
and non-appearing defendants on its first cause of action (Howland Affirm., ¶¶49-55). How
plaintiff could simultaneously be seeking to interpose an Amended Complaint, at the very least to
add party defendants while at the same time seeking a default judgment as to its existing
Complaint, remains unexplained.
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POINT I
PLAINTIFF'S MOTION TO AMEND THE COMPLAINT SHOULD BE DENIED
The standard on a motion to amend a pleading pursuant to CPLR §3025(b) is well known.
While such a motion is a matter of the sound discretion of the Court, such a motion should be
Preview
FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------------x U.S. BANK NATIONAL ASSOCIATION, AS Index No. 600285/2020 TRUSTEE, SUCCESSOR IN INTEREST TO WACHOVIA BANK, N.A., AS TRUSTEE FOR MERRILL LYNCH MORTGAGE INVESTORS, INC., MERRILL LYNCH MORTGAGE INVESTORS TRUST, SERIES 2005-3, Plaintiff, -against- 63 HOLIDAY DRIVE REALTY CORP., NATIONAL CITY BANK, THE. BOARD OF MANAGERS OF THE ALHAMBRA CONDOMINIUM, THE ALHAMBRA CONDOMINIUM, SUNJAN SINGH, and JOHN DOE, Defendants. -----------------------------------------------------------_______Ç MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION TO AMEND THE COMPLAINT AND FOR A DEFAULT JUDGMENT AND IN SUPPORT OF CROSS-MOTION OF DEFENDANT 63 HOLIDAY DRIVE REALTY CORP. FOR COSTS AND SANCTIONS MILLER, ROSADO & ALGIOS, LLP Christopher Rosado, Esq. Attorneys for Defendant 63 Holiday Drive Realty Corp. 320 Old Country Road, Suite 103 Garden City, New York 11530 Of Counsel: Neil A. Miller, Esq. 1 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 Table of Contents PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENTS....................... 1 POINT I PLAINTIFF'S MOTION TO AMEND THE COMPLAINT SHOULD BE DENIED ........................................................................................................ 7 A. 63 Holiday Would Be Prejudiced And Surprised By The Proposed Amendment, And Plaintiff Unduly Delayed Moving To Amend ........... 7 B. The Proposed Amendment Is Palpably Insufficient And Patently Devoid Of Merit ...................................................................................... 9 POlNT II 63 HOLIDAY'S CROSS-MOTION FOR COSTS AND SANCTIONS SHOULD BE GRANTED ................................................................................... 14 CONCLUSION ............................................................................................................... 16 1 2 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 Table of Authorities Cases American Builders & Contractors Supply Co., Inc. v. US Allegro, Inc., 177 A.D.3d 836, 112 N.Y.S.3d 765 (2nd Dept. 2019) ........................................................................................................ 7, 9 Dawley v. McCurnber, 45 A.D.3d 1399, 845 N.Y.S.2d 888 (4th Dnt. 2007) ........................................................................................................ 9 DeLuca v. Pecoraro, 109 A.D.3d 636, 970 N.Y.S.2d 822 (2"d Dept. 2013) ........................................................................................................ 4, 9 Golden First Bank v. Tal, 136 A.D.3d 974, 25 N.Y.S.3d 638 (2nd Dept. 2016) ........................................................................................................ 10 Hussain v. Chain, 217 A.D.3d 929, 192 N.Y.S.3d 170 (2nd Dept. 2023) ........................................................................................................ 12 Indymac Bank, F.S.B. v. Vincoli, 105 A.D.3d 704, 962 N.Y.S.2d 624 (2nd Dept. 2013) ........................................................................................................ 5, 10 JP Morgan Chase Bank, N.A. v. Mbanefo, 123 A.D.3d 669, N.Y.S.2d 415, (2nd Dept. 2014) ........................................................................................................ 5, 11 Krisher v. Hernandez, 2023 N.Y. Misc. LEXIS 3270 2023 Slip Op 3219[U] (Sup. Ct., N.Y. Co. 2023) ........................................................................................ 12 Li v. Shah, 207 A.D.3d 444, 171 N.Y.S.3d 547, (2nd Dept. 2022) ........................................................................................................ 7 . 1 3 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 Matter of Amona v. County of Orange, 123 A.D.3d 1117, 1 N.Y.S.3d 166 (2nd Dept. 2014) ........................................................................................................ 10 Med-Mac Realty Co., Inc. v. Modell, 2018 N.Y. Misc. LEXIS 801 2018 NY Slip Op 30409[U] (Sup. Ct., N.Y. Co. 2018) ......................................................................................... 4,8 Pensabene v. City of New York, 172 A.D.3d 1396, 98 N.Y.S.3d 900 (2nd Dept. 2019) ........................................................................................................ 5, 12 Rice-Tamsen v. Tamsen, 214 A.D.3d 685, 182 N.Y.S.3d906 (2nd Dept. 2023) ........................................................................................................ 4, 7, 9 Statutes and Court Rules CPLR §1003 ............................................................................................................. 5, 12 CPLR §3025(a) ........................................................................................................... 12 CPLR § 3025 ( b ) ........................................................................................................ 5, 7 CPLR §3215[c] ........................................................................................................ 2, 4, 6 7, 8 CPLR § 3025[b] ....................................................................................................... 5 CPLR § 5015 ........................................................................................................... 10 P § .......................................................................................................... ORPA 151L 5, 10 RPAPL§1501(1)..................................................................................................... 10 RPAPL §1515 ......................................................................................................... 10 RPAPL §1526 ........................................................................................................ 10 RPAPL Article 15 .................................................................................................... 10, 11 11 4 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 22 NYCRR §130-1.1[c][1] ...................................................................................... 5 22 NYCRR §130-1.1[c][2] ...................................................................................... 6 NY RR 3 OC 122 -1 1 c 14 5 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------------x U.S. BANK NATIONAL ASSOCIATION, AS Index No. 600285/2020 TRUSTEE, SUCCESSOR IN INTEREST TO WACHOVIA BANK, N.A., AS TRUSTEE FOR MERRILL LYNCH MORTGAGE INVESTORS, INC., MERRILL LYNCH MORTGAGE INVESTORS TRUST, SERIES 2005-3, Plaintiff, -against- 63 HOLIDAY DRIVE REALTY CORP., NATIONAL CITY BANK, THE BOARD OF MANAGERS OF THE ALHAMBRA CONDOMINIUM, THE ALHAMBRA CONDOMINIUM, SUNJAN SINGH, and JOHN DOE, Defendants. ______________-_______________________________--------------------Ç MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION TO AMEND THE COMPLAINT AND FOR A DEFAULT JUDGMENT AND IN SUPPORT OF CROSS-MOTION OF DEFENDANT 63 HOLIDAY DRIVE REALTY CORP. FOR COSTS AND SANCTIONS Preliminary Statement and Summary of Arguments Plain and simple, plaintiff's motion, ostensibly to amend its Complaint 3-1/2 years after it commenced this action, is utterly unnecessary and for that reason, warrants the imposition of sanctions against it. This is a mortgage foreclosure action in which plaintiff seeks to foreclose its mortgage with respect to a certain condominium unit know as 88 Alhambra Drive, Building 6, Unit 88, Oceanside, New York 11572 (the "Property"). Plaintiff commenced this action in early January 2020 including among the defendants named herein the two (2) owners of record of the - 63 Drive Corp. ("63 and Sunjan Singh ("Singh"). In the Property Holiday Realty Holiday") 6 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 more than 3-1/2 years between the commencement of this action and plaintiff's current motion to amend, there has been substantial motion practice involving b_o_1h 63 Holiday's attempt to dismiss this action pursuant to CPLR §3215[c], the denial of which is now before the Second Department in a perfected appeal, and plaintiff's failure to timely serve Mr. Singh, due entirely its unwillingness to expend the time and monies required to serve him in India pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Plaintiff's new misguided strategy is apparently to try to avoid these problems by now claiming, contrary to its own Complaint, that neither defendant Board of Managers of the Alhambra Condominium (the "Board of Managers"), nor 63 Holiday or Mr. Singh ever had valid title to the Property. Specifically, plaintiff now seeks to attack a certain Judgment of Foreclosure and Sale dated August 29, 2019 (the "Condominium Lien Foreclosure Judgment") issued in a separate condominium lien foreclosure action commenced by the Board of Managers in this Court (Index No. 611001/2017; the "Condominium Lien Foreclosure Action"). In that connection, plaintiff wrongly maintains that the Condominium Lien Foreclosure Judgment is a because Carol E. Platzker the prior owner of the who was the first- nullity ('Platzker"), Property named defendant in the original summon and complaint in that action, had died prior thereto, conveniently ignoring the fact that both the original summons and complaint were amended as of right by the plaintiff there Board of Managers a mere ten (10) days after their filing to acknowledge Ms. Platzker's death and to name Mindy Zoghlin ("Zoghlin"), the appointed executrix of Ms. Platzker's estate, as a defendant as a "possible heir". Plaintiff likewise conveniently chooses to ignore the fact that Ms. Zoghlin, through her attorney, admitted service 2 7 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 of the amended summons and amended complaint in the Condominium Lien Foreclosure Action, and was subsequently served with an of the papers thereafter, including but not limited to notice of entry of the Condominium Lien Foreclosure Judgment, without asserting any answer or objection thereto. Plaintiff, a stranger to the Condominium Lien Foreclosure Action, goes through all of this now, some 3-1/2 years after commencement of this action, because it seeks to vacate a certain deed dated October 29, 2019 (the "October 2019 Deed"; see accompanying affirmation of Christopher Rosado, Esq. dated November 2, 2023 ["Rosado Affirm"], Exhibit C thereto) issued by the referee appointed in the Condominium Lien Foreclosure Action by which the Board of Managers took title to the Property as well as a subsequent deed dated December 9, 2019 (the "December 2019 Deed", Rosado Affirm, Exhibit B thereto) by which the Board of Managers sold the Property to 63 Holiday and Mr. Singh. Of course, plaintiff was fully aware when it filed its original Complaint that the Board of Managers', 63 Holiday's and Mr. Singh's title devolved from a judicial sale conducted pursuant to the Condominium Lien Foreclosure Judgment issued in connection with the Condominium Lien Foreclosure Action, as it acknowledged such so much in the Complaint. The lack of procedural or substantive merit to plaintiff's motion aside, most egregiously there was no need at all of this motion to go forward. Specifically, 63 Holiday's counsel offered to enter into a stipulation with plaintiff's counsel that would address any conceivable concern (as unfounded thought it may be) that necessary parties (Ms. Zoghlin and other heirs of Ms. Platzker's estate) were missing; to wit, a stipulation permitting plaintiff to add them as defendants to the existing cause of action for foreclosure so as to bind them to any judgment of 3 8 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 foreclosure and sale that might issue herein (Rosado Affirm., Exhibit D thereto). However, plaintiff did not even have the courtesy to respond to this overture that the dispute could be readily resolved by stipulation suggested above. In so doing, plaintiff revealed its true motivation - i.e. it hoped to try and avoid dismissal of this action 63 Holiday as a by eliminating necessary party if it could somehow contrary to law and fact vacate the December 2019 Deed of the Property to it. In Point I, we show that plaintiff's utterly inconsistent motion both to interposed an Amended Complaint while simultaneously seeking a default judgment with respect to the original Complaint should be denied. Among other things, plaintiff has no_t complied with the facts" basic requirement that it explain when it first learned of the "new which are the supposed basis for its motion to amend and provide a reasonable excuse for its delay in asserting them [2nd (Rice-Tamsen v. Tamsen, 214 A.D.3d 685, 686, 182 N.Y.S.3d 906, 907 Dept. 2023]). Moreover, the time and money already expended by 63 Holiday litigating issues that plaintiff is now belatedly attempting to avoid, including considerable motion practice and perfecting an appeal on whether it is entitled to dismissal under CPLR is cognizable prejudice (Med- §3215[c], Mac Realty Co., Inc. v. Modell, 2018 N.Y. Misc. LEXIS 801, at p. 15, 2018 NY Slip Op 30409[U], at p. 13 [Sup. Ct., N.Y. Co. 2018]). Moreover, the new cause of action asserted by plaintiff attacking 63 Holiday's title to the Property is unanticipated, inconsistent with the original Complaint and would greatly expand the issues in this nearly 4 year old case, all of "surprise" which constitutes the type of warranting denial of plaintiff's motion deny a motion to [2nd amend (DeLuca v. Pecoraro, 109 A.D.3d 636, 637-38, 970 N.Y.S.2d 822, 823-24 2013]). Lastly, the proposed amendment is also palpably insufficient and patently devoid of 4 9 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 merit in that: (1) any attempt to vacate the Condominium Lien Foreclosure Judgment must be made in the context of that action (Indymac Bank, F.S.B. v. Vincoli, 105 A.D.3d 704, 706, 962 [2"d N.Y.S.2d 624, 626 Dept. 2013]); (2) as there is no party asserting or even potentially asserting that plaintiff's mortgage interest is invalid, the proposed second cause of action fails to state a claim ("RPAPL') §1501, and plaintiff does not seek to recover ownership or possession of real property (JP Morgan Chase Bank, N.A. v. Mbanefo, 123 A.D.3d 669, 998 N.Y.S.2d 415, [2nd 416 Dept. 2014); and (3) plaintiff's contention that the Condominium Lien Foreclosure Judgment is a nullity because of Ms. Platzker's death before the commencement of the Condominium Lien Foreclosure Action is demonstrably wrong on numerous grounds, such as the Managers' Board of entitlement to add Ms. Zoghlin as a party and to amend the complaint as of right (CPLR §§1003, 3025[b]), the ability to amend to add Ms. Zoghlin regardless since the action still existed as against the other named defendant in that action, National City Bank [2nd (Pensabene v. City of New York, 172 A.D.3d 1396, 1396-97, 98 N.Y.S.3d 900, 901 2019]) and because any supposed defect in the Condominium Lien Foreclosure Action or the Condominium Lien Foreclosure Judgment was waived by Ms. Zoghlin, when her counsel therein admitted service of the amended summons and amended complaint and then failed to defend the action or raise any objection when a slew of litigation papers were subsequently served upon him, including notice of entry of the Condominium Lien Foreclosure Judgment. In Point II, we show that 63 Holiday's cross-motion for sanctions should be granted. Plaintiff's motion is frivolous for two (2) independent reasons. First, for the reasons stated in Point I, it is "completely without merit in law and cannot be supported by a reasonable argument law" for an extension, modification or reversal of existing (22 NYCRR §130-1.1[c][1]). Second, 5 10 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 the motion was "undertaken primarily to delay or prolong the resolution of the litigation, or to another" harass or maliciously injure (22 NYCRR §130-1.1[c][2]). Plaintiff not only ignored a warning from 63 Holiday's counsel that there was no merit to its motion (Rosado Affirm., Exhibit L thereto), but did n_ot even have the courtesy to respond to a later offer from 63 Holiday's counsel to stipulate to the conceivable relief plaintiff could even need - only remotely adding Ms. Zoghlin, the executrix of the Ms. Platzker estate and other beneficiaries of the estate as parties to the existing cause of action for foreclosure (Rosado Affirm., Exhibit D thereto). This demonstrates that plaintiff's true motivation was to avoid the possibility that its case against 63 Holiday might be dismissed by the Second Department on CPLR §3215[c] grounds. Having unnecessarily put 63 Holiday to the expense of defending a meritless and unnecessary motion, plaintiff should be forced to pay for the privilege. We develop these argmnents below. The relevant facts are set forth in the accompanying affirmation of Christopher Rosado, Esq., and will be repeated only insofar as necessary to discuss herein.¹ the legal issues IPlaintiff also sought, not in the alternative, a default judgment against all non-answering and non-appearing defendants on its first cause of action (Howland Affirm., ¶¶49-55). How plaintiff could simultaneously be seeking to interpose an Amended Complaint, at the very least to add party defendants while at the same time seeking a default judgment as to its existing Complaint, remains unexplained. 6 11 of 22 FILED: NASSAU COUNTY CLERK 11/02/2023 05:04 PM INDEX NO. 600285/2020 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 11/02/2023 POINT I PLAINTIFF'S MOTION TO AMEND THE COMPLAINT SHOULD BE DENIED The standard on a motion to amend a pleading pursuant to CPLR §3025(b) is well known. While such a motion is a matter of the sound discretion of the Court, such a motion should be